News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

New opinion — court broadly applies overtime law

The Third Circuit today ruled that the Fair Labor Standard Act requires an armored-truck courier company to pay a driver/guard overtime. The case required untangling a statutory thicket. The FLSA required overtime. An exception to the law exempted certain motor carriers. An exception to the exception un-exempted motor carrier employees whose job “in whole or in part” affects the safe operation of vehicles under 10,000 pounds. Here, the employee spent 49% of her time in vehicles under 10,000 pounds, so the panel held that she gets overtime.

Joining Fuentes were Greenberg and Cowen. The case was decided without oral argument.

Since I have judicial-emergency-on-the-brain, two observations. First, the issue here was more complicated (and novel, with no prior rulings in any circuit) than I’d expect for a published case without oral argument. Second, this is one of what seems like a growing number of CA3 panels with two senior or non-CA3 judges. I wonder whether the Third Circuit’s judicial emergency is part of why cases like this are decided without argument and with a single active judge on the panel.

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3 thoughts on “New opinion — court broadly applies overtime law”

Matthew:
I believe the authority comes from Section 46 of the Judicial Code. It allows the courts of appeals to sit in three-judge panels, a majority of whom are active members of the court. It makes an exception to that rule for judicial emergencies.
DRF

28 USC 46(b) says in part, “In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness.”

And section 43(b) says, “Each court of appeals shall consist of the circuit judges of the circuit in regular active service.”

Read together, these two provisions seem to support your view, although it’s not free from doubt.

My post was based on my sense that panels with two senior judges were (at least) unusual. I have not gone hunting to figure out whether, before the current emergency, it ever happened.

I think that it did happen. To my mind, the more interesting circumstance is when an active judge who has heard a case leaves the court (whether by resignation (e.g., Judge Chertoff) or by elevation (e.g., Judge/Justice Alito). Sometimes those judges sit on panels with one other circuit judge and a district judge sitting by designation. To my knowledge, the court typically allows the case to be decided by the two remaining judges. There are two things I cannot recall that would make the issue more interesting still: (1) whether there were judicial emergencies in place at the times such decisions were entered and (2) whether it was ever the case that the remaining circuit judge was on senior status such that there was no active circuit judge deciding the case.